Court File and Parties
CITATION: Miller v. Callaghan, 2026 ONSC 2821
COURT FILE NO.: FS-23-00107154-0000
DATE: 2026 05 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Denila Miller
Self-Represented, for the Applicant
Applicant
- and -
Almando Callaghan
Self-Represented, for the Respondent
Respondent
HEARD: April 29, 2026
REASONS FOR JUDGMENT ON UNCONTESTED TRIAL
Mandhane J.
INTRODUCTION
[1] The applicant/mother appeared before me for an uncontested trial. She urgently seeks final parenting and financial orders against the respondent/father.
[2] The mother says that the father has forced her into three years of costly litigation by steadfastly refusing to provide her with financial disclosure, information about their five-year-old twins, or any expansion of her parenting time beyond four out of fourteen days.
[3] Based on the evidence proffered by the mother and based on the adverse inferences available to me because of the father’s lack of participation in this litigation, I am prepared to grant the relief sought by the mother, including her request for a reversal of primary parenting time. I am satisfied that doing so is in the children’s best interests.
[4] I issued a final order to that effect on May 1, 2025. These are my written reasons for imposing its terms.
OVERVIEW
[5] The mother is an immigrant to Canada from Jamaica, arriving here on a work permit in her 20s. The father is a Canadian citizen of Jamaican ancestry who is twenty years senior to the mother. The mother has a son from a previous relationship in Jamaica (“the stepson”), while the father has five adult children from previous relationships in Canada.
[6] The parties met in Canada, started living together in 2016, and married on March 24, 2017. The father bought the matrimonial home in December 2017, paid the entire downpayment, was always responsible for making the mortgage payments, and is the sole title holder. The mother testified that she was responsible for paying for the utilities and groceries.
[7] The father sponsored the mother and stepson to become permanent residents of Canada in 2018 and undertook to support them financially.
[8] The parties had twins—a boy and a girl—on August 10, 2020 (“the twins”). At some point, the father’s adult daughter came to live in the matrimonial home, which caused tension between the parties.
[9] The parties started arguing in 2021/2022 and the police were called to the matrimonial home a few times during that period. The fighting was mostly between the mother and adult daughter.
[10] The parties separated on September 6, 2023 when the mother was charged by police, removed from the home, and ordered not to contact the father. Afterwards, the stepson went to live with his mother in a rented apartment. The father has refused to see the stepson (and has not seen him since), and refuses to allow the mother to see the twins without a court-order.
[11] The mother issued this application on October 10, 2023; by then, she was 31 years old, the father was 53, the stepson was 13, and the twins were three. She sought sole decision-making authority and primary parenting time for all three children, child and spousal support, and equalization of net family property (NFP).
[12] The father answered on November 15, 2023; he was granted leave to file his answer without a Financial Statement. To date, the father has never sworn a financial statement or provided any financial disclosure to the mother whatsoever. The father sought sole decision-making authority, primary parenting time, child support, and equalization. He claimed to hold 2/3 of his interest in the matrimonial home in trust for the adult daughter and his sister.
[13] On February 9, 2024, Justice McSweeney heard the mother’s urgent motion for parenting time with the twins. Counsel represented the mother and the father represented himself. He did not file any materials.
[14] Justice McSweeney ordered a step-up parenting plan that would eventually have the mother having overnight parenting time with the twins from Thursdays at 5:00 p.m. to Saturday at 5:00 p.m. (i.e. four out of 14 days). Justice McSweeney ordered that parenting be “reviewed with a view to further expansion at the next case conference,” and that if expansions were not agreed to, the mother could bring a motion.
[15] The father refused to agree to any expansions prior to the next conference.
[16] On May 27, 2024, the mother’s criminal charges were withdrawn and she entered a common law peace bond, effectively acknowledging that there were probable grounds she would misbehave and breach the peace in relation to the father. That said, the mother did not misbehave and the peace bond expired on June 27, 2025.
[17] At a case conference before Justice McGee on June 27, 2024, the father attended without filing any materials, refused to agree to any expansion of the mother’s parenting time, refused to pay spousal support, and refused to swear a financial statement. Justice McGee noted however that, “[f]or the first time, Mr. Callaghan disclosed his income during the conference: 2021: $165,965, 2022: $144,593 and 2023: $124,729.” The parties also agreed on September 6, 2023 as their separation date.
[18] Justice McGee granted the mother leave to bring a motion for expanded parenting time. The mother testified before me that she never brought a motion because she was impecunious after leaving the matrimonial home, and because the litigation was quickly overtaken by the father’s refusal to participate.
[19] The father did not attend the settlement conference before Kumaranayake J. on June 20, 2025 and again, there was no expansion of the mother’s parenting time.
[20] On July 15, 2025, I struck the father’s Answer for breach of three costs awards, refusing to file a Financial Statement, and failing to attend two Court appearances. Despite being afforded subsequent opportunities to cure his default and participate in this litigation, the father never has.
[21] Pursuant to my July 2025 endorsement, the mother moved for final relief by way of uncontested trial on a written record.
[22] On October 6, 2025, McGee J. granted the mother sole decision-making authority for the twins on a final basis, and imposed a non-removal order on both parents. She also granted the mother temporary, without prejudice, spousal support in the amount of $1000 per month—to be offset against any final order. A support deduction order was issued. Justice McGee adjourned the balance of the relief to an oral hearing to allow the mother to provide additional evidence to ground her claims, and to allow the father one final opportunity to become engaged in this litigation.
[23] The father was served with the trial record in February 2026, but did not take any steps to cure his default or respond to it. He did not appear before me despite being aware of the schedule trial date and being paged by Court staff.
[24] Before me, the mother seeks the following relief on a final basis:
a. A reversal of primary parenting time such that the twins would start living with her primarily, and seeing their father on Thursdays from 5:00 p.m. to Sundays at 5:00 p.m. in Week 1, and Thursdays from 5:00 p.m. to Saturdays at 5:00 p.m. in Week 2; and with further expansions of the father’s parenting time on consent of the parties, or by way of further Court order.
b. Ongoing child support for two children based on an imputed income to the father of $124,729 (“imputed income”).
c. Retroactive spousal support at the high end of the range based on the mother’s actual income and the father’s imputed income, from September 6, 2023 through March 31, 2026, payable as a lump sum.
d. Equalization payment equal to half of the estimated value of the matrimonial home as of the date of separation (i.e. $375,000).
e. Costs on a substantial indemnity basis in the amount of $28,000.
ISSUES
[25] The issues I must decide are:
a. What parenting time orders are in the best interest of the twins?
b. What are the parties’ incomes for support purposes?
c. What child support is payable going forward?
d. Is the mother entitled to spousal support? If so, what is the proper quantum and duration? Should I order lump sum support?
e. What is the equalization payment owing?
f. What costs should I order?
ANALYSIS
[26] Before I deal with each of these questions, I note that the mother testified at trial and was a credible witness. She only testified about facts in her direct knowledge, never speculated, never denigrated the father, made admissions against interest, proffered business records that corroborated her version of events, and took reasonable positions. For example, the mother refused to speculate about the father’s current living situation or relationship status, readily admitted that there was a mortgage on the matrimonial home even though she did not know the amount, and asked me to impute a modest income to the father despite there being an evidentiary basis to impose a higher amount.
[27] On the most serious allegation—that the father is neglecting the twins—the mother produced corroborating photographs, medical records, and correspondence, while readily admitting that the father loved the twins very much and would never intentionally mistreat them but seemed in over his head.
[28] Therefore, I accept the unchallenged evidence of the mother and all the reasonable inferences that flow from it.
a. What parenting orders are in the best interests of the twins?
[29] Justice McGee already ordered that the mother have sole decision-making responsibility in relation to the twins on a final basis. The father did not appeal that order and it remains in full force and effect.
[30] The only question for me is whether and how much the mother’s parenting time should be expanded going forward. The mother asks for primary parenting time. Practically speaking, this means that she would have three additional overnights with the twins in a two-week period.
[31] A reversal in primary parenting time is an extreme remedy that can only be imposed where the moving party establishes that it is in the children’s best interest on a balance of probabilities standard: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(1). The factors that I must consider when determining the children’s best interests are set out in s. 16(3) of the Divorce Act. I turn to them now.
Plan of care
[32] At present, the twins live in the matrimonial home with the father. Since he has never sworn a parenting affidavit, I do not know who else lives in the home or any other relevant details about the twins’ living arrangements. The mother testified that she does not know who else is living in the matrimonial home. She knows that the paternal grandfather sometimes visits from Jamaica, and that the home is large enough for everyone.
[33] The mother is single and is currently living in a two-bedroom apartment. When she has parenting time, the twins sleep together in one room, and she sleeps in the other. The stepson usually sleeps at a cousin’s house where there are other children his age.
[34] If I grant her primary parenting time over the twins, the mother says that she plans to rent a three-bedroom apartment so the twins and stepson will have more space. The maternal grandmother plans to visit from Jamaica to help with the twins once the mother has expanded parenting time with them.
Age, development, needs
[35] The mother gave evidence about the children’s age, stage of development, and needs. The girl twin is five years old, she is enrolled in school, and is meeting her developmental milestones. She is a “girly-girl” who enjoys getting her hair and nails done and dressing up. She is talkative and eager to tell her mother about her school and life experiences.
[36] The boy twin is also five years old and enrolled in the same school as his sister. He has been diagnosed with autism spectrum disorder, and has a limited vocabulary, and limited verbal communication. The mother says that the son can become overstimulated at times, which causes him to shut down and hum or vocalize loudly as a coping mechanism. She says that the son needs consistency and routine, and that he has trouble falling asleep without her assistance. The mother is concerned that the son may fall further behind socially and academically if there are any additional delays in his treatment and support. She has already begun exploring the idea of transferring him to a school with dedicated supports.
[37] The mother testified that the father has never acknowledged the son’s autism diagnosis and ignores the mother’s requests to explore further treatment and education supports. She notices that the twin son sometimes seems tired when he comes back from the father’s home, which she attributes to the father’s odd working hours which may make it difficult for him to prioritize a consistent bedtime.
[38] The history of care of the children is nuanced. While the father has had primary parenting time with the twins since September 2023, I accept the mother’s evidence that she was their primary caregiver during the marriage, and that she has remained so since.
[39] To date, the mother has remained entirely responsible for taking the twins to their doctor’s appointments, dentist’s appointments, attending parent teacher interviews, liaising with teachers about the twin boy’s special needs, applying for special education funding, buying weather-appropriate clothing and footwear, and caring for their Afro-textured hair. The father’s caregiving appears limited to providing food and shelter.
Ability to meet the children’s needs
[40] I also accept the mother’s evidence that she is concerned about the father’s ability to meet the children’s daily needs. For example, she testified that the twins both acquired fungal skin infections in 2024 that the father refused to treat with the doctor-prescribed antibiotics, such that the infections have never fully resolved over the course of several months. The infections had become so extreme that both twins developed bald spots after their hair began falling out in the infected areas.
[41] The children are also underweighting at present. The mother has communicated the need for proper nutrition to the father, but he refuses to acknowledge the mother’s correspondence. The mother says that the children are fussy eaters and that she generally caters to their appetite for processed foods. She does not know what they eat with the father.
[42] Based on the record, I am concerned about the father’s ability to meet the children’s emotional needs as well. It is troubling that the father cut himself off completely from the stepson after separation, even though he had sponsored the son to remain in Canada and treated him like a son during the marriage.
Relationship with parents and other family members
[43] The twins are bonded with both of their parents. The mother testified that the children are happy during the exchanges at the local Walmart parking lot, that they are happy in her care, that she lives close to their school, and that they are sometimes sad when they leave her care. She admitted that the father loved the children and cares for them.
[44] The mother says that the stepson is excited about being reunited with his half-siblings. She says that he grew up with the twins and wants to spend more time with them. The mother says that the twins adore their big brother, with the twin girl always asking him to lift her up so she can touch the ceiling.
Parental communication and willingness to support the children’s relationship with the other spouse
[45] Over the past two years, the father has refused to have any communication with the mother whatsoever about the children’s needs, and is unsupportive of her maternal relationship with the twins. He completely withheld parenting time from the mother between September 2023 and February 2024 (a period of five months), and has not consented to any expansion since. In February 2024, Justice McSweeney told the parties that their aim should be to work towards shared parenting time. The father has done the opposite.
[46] The father has also made unilateral decisions about the children’s care and education, for example, unenrolling them from daycare and enrolling them in school without naming the mother as an emergency contact on the school paperwork.
Family violence
[47] While both parties alleged family violence in their 2023 pleadings, as of the trial before me, the mother has conceded that she no longer has any concerns about family violence, that there have not been any recent incidents during exchanges, and the police have not been involved with the family at all.
Culture and religious upbringing
[48] While both parties are of Jamaican ancestry, the mother says that she attends church and that the father is not religious. She asks me to allow her to have parenting time every second Sunday so that she can begin taking the children to church with her.
Conclusion re: the children’s best interests
[49] Considering all the relevant factors and the unchallenged evidence at trial, I find that expanding the mother’s parenting time so that she has primary parenting time with the twins is in their best interests.
[50] First, I am concerned about the father’s ability to meet the children’s basic needs. He does not appear willing or able to address the twin boy’s autism diagnosis, he has not been diligent with addressing the children’s fungal skin infections, he does not appear to be meeting the children’s nutritional needs, and his instinct in the face of conflict appears to be to shut off. In contrast, the mother is a good caregiver and has made sound decisions about the children’s medical, education, and other care. She meets their hygiene and health needs. She provides structure and routine. She tried to communicate with the father in a child-focused way.
[51] Second, I am concerned that the father does not support the mother’s relationship with the twins, and cannot communicate with the mother in a child-focused manner. He has withheld parenting time for five months, engaged in sustained informational gatekeeping, made significant decisions unilaterally, and disengaged from this litigation as a means of thwarting the mother’s efforts to expand her parenting time with the twins. In the face of all this, the mother has continued to try to communicate in a child-focused manner, and continues to want him to play a significant parenting role with the twins.
[52] Third, I am confident that the mother can provide a safe and comfortable home environment, and that she will allow the twins to develop a deeper relationship with the stepson (their half brother), and allow them to engage in a faith community. The mother would also like to enrol the children in extracurricular activities and continue taking them to community drop-in centres. In contrast, I know nothing about the father’s home environment or his plans for the children’s emotional, social, or cultural growth and development.
[53] Fourth, I am not overly concerned about disrupting the twins’ routine because they will continue to see both parents at their respective homes, continue attending their local school, and because the expansion is still relatively modest at three additional overnights in a fourteen-day period. Given their young age, I do not anticipate that the children will have trouble adjusting to spending longer times with their mother, with whom they are close and who is de facto responsible for their care and has sole parenting decision-making authority anyway.
[54] Fifth, I would grant the mother make-up parenting time equal to five full weeks of continuous parenting time to compensate her for the father’s withholding of parenting time for five months in 2023. In my view, it is important that the mother have some uninterrupted parenting time with the children forthwith so that she can bond with them, re-establish a consistent care routine, liaise with their treating professionals and teachers about any necessary supports, and address their urgent hygiene and nutritional needs.
[55] Once the father’s parenting resumes after five weeks, I would impose a slightly modified schedule to the one proposed by the mother so that most of the parenting time exchanges take place at school rather than in the Walmart parking lot. This is a more natural setting for exchanges that minimizes time spent in the car and limits communication between the parents.
[56] The schedule is as follows:
a. Effective at 2:00 p.m. on Friday, May 1, 2026, the children shall reside primarily and exclusively with the mother until Friday, June 5, 2026. The father shall not have any parenting time during this five week period.
b. After June 5, 2026, the Respondent Father shall have parenting time with the children pursuant to the following “regular schedule”:
i. Effective June 5, 2026 and every second week thereafter, the Respondent Father shall have parenting time with the children from Friday afterschool pickup to Monday before school drop off.
ii. Effective June 12, 2026 and every second week thereafter, the Respondent Father shall have parenting time with the children from Thursday afterschool to Saturday evening at 5:00 p.m.
[57] I would also order that the parties communicate via a notebook that travels back and forth with the children.
b. What are the parties’ incomes for support purposes?
[58] The mother gave fulsome evidence about her income for support purposes. In 2023, she was employed by Service Canada and earned $63,202; in 2024, she earned $58,888 and her contract with the government was terminated, and in 2025, she collected $20,303 in employment insurance. She has been collecting $1,200 biweekly in employment insurance benefits since then.
[59] The mother testified that she is starting a part-time job in May 2026 earning $27/hour, or approximately $25,000 annually.
[60] The father has never provided any information about his income. The only information in the record is the father’s own verbal account of his income to Justice McGee at the case conference in 2024 wherein he stated that his income was as follows: 2021: $165,965, 2022: $144,593 and 2023: $124,729. This is the best evidence available about his past income—even if it takes the form of unsworn hearsay.
[61] Before me, the mother testified that the father was employed throughout their marriage, holding a “DZ Licence” and operating dump trucks and garbage trucks. As of the date of separation, the mother testified that the father was employed at Miller Waste Systems, and that his pay stubs indicated that he was earning between $4,000 and 6,000 biweekly (equal to between $100,000 and $150,000 annually).
[62] I am prepared to draw strong adverse inferences against the father and impute an appropriate amount of income because he has failed to meet his financial disclosure obligations: Federal Child Support Guidelines, SOR/97-175, s. 23; see also Meade v. Meade, at para. 81.
[63] My authority to impute income is discretionary and fact-specific: Levin v. Levin, 2020 ONCA 604, at para. 12. However, I cannot select an arbitrary amount: Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 44. Instead, “there must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence” and be “reasonable in the circumstances:” Drygala, at paras. 44-45. The evidence need not be perfect, but it must be sufficient to allow me to judicially exercise my discretion: Michaud v. Kasali, 2016 ONSC 443, at para. 51.
[64] Here, I agree with the mother that the father’s income should be imputed at $124,729. This is a conservative estimate of his income that is grounded in his own representations to the court, and the mother’s evidence about his qualifications, past employment, and past income.
[65] Therefore, the parties’ incomes for support purposes are as follows:
| Year | Mother’s income | Father’s income | Parenting arrangements |
|---|---|---|---|
| 2023 | $63,202 | $124,729 | January-June 2023, joint parenting time June-December 2023, Father has sole parenting time |
| 2024 | $58,888 | $124,729 | Father has primary parenting time; Mother has parenting time four out fourteen days |
| 2025 | $20,303 | $124,729 | Between January and May 2026, the Father has primary parenting time; the Mother has parenting time four out of fourteen days |
| 2026 | $20,303 | $124,729 | Between January and May 2026, the Father has primary parenting time; the Mother has parenting time four out of fourteen days. After May 2026, the mother has primary parenting time; the father has parenting time five out of fourteen days |
| 2027 | Actual income | $124,729 | Mother to have primary parenting time; the father has parenting time five out of fourteen days |
c. What child support is payable?
[66] Effective immediately, the father shall pay the mother child support for two children consistent with the Guidelines and his imputed income of $124,729, in the amount of $1,825.60 per month.
d. What is the proper quantum and duration of spousal support?
[67] I accept Justice McGee's October 6, 2025 finding at paragraphs 27-28 that the mother is entitled to spousal support as of the date of separation on both a compensatory and needs basis. The father sponsored the mother to become a permanent resident, she was always the lower wage earner and primary caregiver to the children during the marriage, and was unemployed as of mid-way through 2024.
[68] The mother asks for retroactive spousal support at the high end of the range based on the imputed income of $124,729 from the date of separation until March 31, 2026. She testified that she expects to be economically self-sufficient once she receives the retroactive spousal support payment, outstanding equalization payment and ongoing child support.
[69] I commend the mother for her recent efforts at economic self-sufficiency and for no longer wanting to rely on the father. I accept the mother’s evidence that she had increased expenses after moving out of the home because of her caregiving responsibilities to the stepson and because of this litigation. She has acquired significant debt according to her sworn financial statement. On that basis, I am prepared to order spousal support at the high end of the range.
[70] Therefore, I would order lump sum retroactive spousal support as follows:
| Year | Mother’s income | Father’s income | Spousal support payable | Total |
|---|---|---|---|---|
| 2023 | $63,202 | $124,729 | 4 months @ high end of the range ($436) | $1,744 |
| 2024 | $58,888 | $124,729 | 12 months @ high end of the range ($470) | $5,640 |
| 2025 | $20,303 | $124,729 | 12 months @ high end of the range ($749) | $8,988 |
| 2026 | $20,303 | $124,729 | 3 months @ high end of the range ($749) | $2,247 |
| $18,619 |
[71] I lieu of calculating pre-judgement interest on a quarterly basis, I would award a lump sum of $25,000 in retroactive spousal support to account for both the principal owing as well as prejudgement interest.
[72] I note that Justice McGee ordered the father to pay $1000 in temporary, interim spousal support as of October 6, 2025. The mother has not provided an accounting of the amounts she received from the father pursuant to that order such that the total amount of retroactive support owing cannot yet be calculated.
[73] The mother can schedule an appearance before me to settle this aspect of the final order.
e. What equalization payment is owing?
[74] The mother has sworn and filed a NFP which shows that she has more debts than assets such that she does not owe any equalization payment to the father. The father has never filed a financial statement, so the court does not have any accurate information about the true extend of his assets.
[75] The mother asks me to order the husband to pay her an equalization payment equal to half of the estimated value of the matrimonial home. She was unable to get an appraisal because the father refused her access to the home. He also refuses to disclose the balance on the outstanding mortgage such that there is no way of determining the equity therein.
[76] To establish the value of the residence on the date of separation, and in lieu of a formal appraisal, the mother relies on a comparable property summary prepared by a realtor on August 6, 2025 for properties sold in the year of separation. The mother concedes that the comparator properties are of higher quality than the matrimonial home such that she asks me to value it conservatively at $750,000.
[77] The mother also notes that the father has refused to disclose any information about the outstanding mortgage on the property, or how much equity they might have had in it. Justice McGee noted in her endorsement from October 2025 that, if the father refused to disclose the mortgage balance as of the date of separation, “the value of the home within the father’s net family property will not be refused by the amount of the outstanding mortgage on the date of separation.”
[78] Again, based on the mother’s unchallenged evidence and the adverse inferences available to me based on the father’s non-participation and non-disclosure, I am prepared to award the mother $325,000 as an equalization payment. While this does not account for any mortgage registered on the property, it also does not account for any of the other assets that the father might have owned on the date of separation.
f. What costs are payable to the mother?
[79] I am prepared to order the mother substantial indemnity costs based on the amounts she paid lawyers earlier in this litigation, her success at the uncontested trial, and the father’s unreasonable conduct throughout.
[80] The father shall pay the mother $28,000 in substantial indemnity costs.
g. What orders should I make?
[81] Consistent with these reasons, a final order related to parenting time, child support, and equalization was issued and entered on May 1, 2026.
[82] I remain seized pending issuance of my final order related to spousal support and costs. The mother shall schedule an appearance before me to settle those aspects of the final order.
Mandhane J.
Released: May 13, 2026